'1. The Applicant herein was charged in the Magistrate’s Court with three principle counts of Incest Contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006 and in the alternative faced the charges of committing an indecent act with a child contrary to Section 11 of the Sexual Offences Act.
2. The Appellant denied all the charges and was subsequently tried, found guilty and convicted on all the three counts of incest and sentenced to serve life imprisonment on the principle count. Being dissatisfied with the conviction and sentence, the Applicant preferred an appeal against both conviction and sentence to this court vide Criminal Appeal No. E058 of 2019 and the said appeal was dismissed by the Hon. Mr. Justice Muhochi who upheld both the conviction and sentence of the Trial Court.
3. He has now moved this court by way of a Notice of Motion dated 29th April 2025, the Applicant seeks the following orders:
1) Spent.
2) That the Honourable Court be pleased to reopen the case and PW1, PW2 and PW3 be recalled to testify afresh on new recanting evidence brought about after the conclusion of the trial and conviction.
3) That costs be in the cause.
4. The Application is expressed to be brought under Article 159(2)(k)(sic) of the Constitution of Kenya 2010, Section 358 of the Criminal Procedure Code, Cap 75 and all other enabling provisions of the Law. It is premised on the grounds therein and the contents of the Supporting Affidavit sworn by the Applicant.
5. The grounds in support are that he was recently informed by his son Collins Kipkosgei Rono and sister, Carolyne Jepkemoi Kipsang that PW1, PW2 and PW3 confessed new recanting evidence to them and that the same had been reduced into affidavits. That the evidence contained in the affidavits is to the effect that PW1, PW2 and PW3’s, Step-mother, Lilian and their Class teacher told them to state that he had defiled them on a promise of milk and bread.
6. The Applicant contends that the additional evidence is very critical and is bound to change the entire position of the case and it is therefore necessary to bring this new evidence on record for the Court to consider. That the recanting evidence is critical especially in such a case of three-incest(sic)
7. That the Applicant has the right to have this evidence brought on record and knowledge of the court which court has the power to accept or reject the evidence under the law. That the prosecution has nothing to lose but everything to gain legally since it is the prosecution witness bringing the new evidence and that it is in the interest of justice that the application be allowed.
8. The Applicant deposed in the Affidavit in support of his Application that on 1st April 2019, the trial Court found him guilty of all principal counts of incest and thereafter sentenced him to serve a life sentence in all three counts. That he appealed the decision of the trial Court and this Honourable Court vide the judgment dated 5th April 2023, upheld the conviction of the trial and confirmed the same and that he is currently serving his sentence at Eldoret G. K. Prison following the charges if incest.
9. He then reiterates the averments made in the grounds in support of his Application and states that it is necessary to bring this new evidence on record for the court to consider upon reopening the suit and that upon reopening the trial suit it is necessary to recall PW1, PW2 and PW3 so that they can tell the Court “viva voce” of this new evidence. That no prejudice will be occasioned to state if this new disclosure is made public. That the Application is made in good faith to ensure the ends of justice are met and that it is in the interest of justice that the same be allowed.
10. The court directed that the Application be canvassed by way of written submissions and both parties complied and filing their relevant submissions. The Applicant filed his submissions dated 19th May 2025 while the Respondent filed submissions dated 9th June 2025
The Applicant’s Submissions
11. In regard to whether the case should be re-opened for recantation of evidence by PW1, PW2 and PW3, Counsel for the Applicant cited Section 358 of the Criminal Procedure Code and submitted that Lord Justice R. Nyakundi in the case of Abdulswamad Swaleh Mohamed & 2 others v Republic [2021| KEHC 8948 (KLR) in setting out conditions to be met to adduce new evidence stated thus: -
Bearing in mind the above minimal guidelines the Court in Ladd v Marshall {1954) 3 ALLER 745 addressed the instances when a party would be allowed to adduce additional and new evidence. In this case the Court held that: “the Rule is applicable in a way to temper procedure with the interests of justice. That in order to justify the reception of fresh evidence or a new trial. three conditions must be fulfilled: First it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. Second, the evidence must be such that if given, it would probably have an important influence on the result of the case although it need not be decisive. Third, the evidence must be sincere as is presumably to be believed or in other words it must be apparently credible although it need not be incontrovertible."
12. Counsel further submitted that in the facts deposed in the Supporting Affidavit of the applicant sworn on 29th April 2025 were not controverted by the respondent and that thereto annexed is an affidavit by Collins Kipkosgei Rono wherein he avers that the three victims being PW1, PW2 and PW3 were told by their step mother and class teacher to admit that they had been defiled by the applicant on a promise of bread and milk. Additionally, Counsel submitted that in the affidavit by Caroline Jepkemoi Kipsang, she avers at paragraph 6 that the class teacher misleads the victims to agree to what they did not understand.
13. On whether this evidence was available and could have been easily procured and within the knowledge of the Applicant at the time of trial or whether the applicant could have got the same had he done his due diligence, Counsel submitted that during and after trial, the victims were never in the custody of the applicant and so therefore the evidence was never available to the Applicant. Counsel maintained that the same only came to his knowledge upon being given the affidavits sworn on 23rd April 2025.
14. Counsel reiterated that the evidence in issue was not in the appellant''s possession at the time of the trial before the subordinate court or even at the time that he instituted the appeal before this court and maintained that, had the evidence sought to be introduced been adopted by the trial Court, the court could have reached a different verdict. Counsel urged that the evidence sought to be introduced is crucial and will help the court make an informed judgement.
15. Counsel thus urged the Court to recall the witnesses to recant their evidence in line with the protection of trial rights as provided under Article 50 of the Constitution. Counsel reiterated that there shall be no prejudice occasioned to the respondent and the application before this honourable court has been brought in good faith. In the end, Counsel submitted that the evidence sought to be produced is relevant, credible and has probative value; and that, it will also have a decisive effect upon the judgement.
The Respondent’s Submissions
16. The learned State Counsel, S.G. Thuo, opposed the application and submitted that the Applicants Notice of Motion dated 29th April 2025 is not only stale, bad in law, an abuse of the court processes, but also dead on arrival. That the Application as brought under Articles 159(2)(k) of the Constitution and Section 358 of the Civil Procedure Code Cap 75(sic) is brought under provisions which are both non-existent Sections of the laws known in Kenya.
17. Counsel submitted that there is an attempt to rely on a general proviso of...."and all other enabling provisions of the law" to try and sanitize the fatality in the legal requirements into the ambit of Article 159 (2)(d) of the Constitution which provides that justice shall be administered without undue regard to procedural technicalities. Counsel however urged that this being a Superior Court that sets legal precedents based on what is presented before it, acting otherwise would be a dangerous judicial precedence.
18. Counsel further submitted that the said application is a mischievous way of appealing against the decision of Mr. Justice Mohochi delivered on 5th April 2023 in Eldoret HCCRA No. E058 of 2019. That in the said Judgement Muhochi J at pages 16-38 referred to the “purported affidavit together with annexures”. That even as the Applicant is seeking to introduce new and compellable evidence sworn by Collins Kipkosgei Rono by way of an Affidavit dated 23rd April 2025, Counsel submitted that it is curious that no lower court proceedings were availed to assist the court appreciate the gist of the current Application.
19. Counsel urged that the thrust of this Application which he urged the court to treat with caution is just one of the recent flurry of applications where Applicants seek to overturn incestuous convictions(sic) at the High Court on the excuse of discovery of new and compelling evidence of the now grownup victims seeing the light
20. He submitted that leave to appeal was never sought and that the same Court that was presided over by Muhochi J who heard the Appeal against conviction and sentence is cognate to the current Honourable Court and therefore the dicta in Owners of Motor Vessel "Lilian S" vs Caltex Oil (Kenya) Ltd (1989) KLR on the issue of jurisdiction comes into play. That in line with the dicta in the cited case, Counsel urged that an appeal against an order from the High Court lies in the Court of Appeal and not before another High Court.
21. Counsel argued that even assuming for a moment that the Applicant, who obviously did not, invoked Section 358 of the Criminal Procedure Code that sparingly allows the High Court to admit additional evidence in an appeal from a Subordinate Court, can this Application, in light of the decision of this court in Eldoret HCRA No 58 of 2019 be said to fall within the strict definition of Section 358 of the Criminal Procedure Code as an appeal from a Subordinate Court. It is Counsel’s submission that this is an appeal from a cognate Court not a Subordinate Court.
22. Counsel further submitted that even with the slightest stretch of imagination, had this application been brought under Article 50(6) of the Constitution, still, it would not have met the threshold of introduction of “new and compelling evidence not readily available at the trial. In this regard, Counsel pointed out that the Applicants submissions largely rely on the dicta of Mr. Justice Nyakundi in the cited case of Abdulswamad Swaleh Mohammed & 2 Others vs Republic [2021] KEHC 8948 (KLR).
23. Counsel submitted that the cited case is totally irrelevant to the present matter reason being that in the cited case, Justice Nyakundi allowed the Applicant to adduce new evidence of a private investigator that was never disclosed to the Applicant at the time of trial. He submitted that the Black Laws Dictionary 8th Edition defines "new" as "recently discovered.... recently came into being..." and "compelling" as "...powerful, evoking attention or admiration...". In this regard then, Counsel urged that it follows therefore the evidence sought to be branded as new and compelling by the Applicant as is sought to be the case herein must have been recently discovered, or has just come into being, and is evidence that will evoke attention and arouse a great deal of interest."
24. Counsel submitted that the question is whether the mere allegation of minors being promised milk and bread to fix the Victims biological father by PW1(an 8-year-old then), PW2 (a 10-year-old then) and PW-3 (a 5-year-old then, who was in fact so traumatized that she could not give oral evidence) can be said to amount to new and compelling evidence sufficient to warrant the recall PW1. He submits that it is not.
25. Counsel further submitted that voire dire was carried out before the minors gave their testimonies either in person or through intermediaries and they were thereafter extensively cross examined. The essence of cross examination then was so as to discredit their evidence and the Applicant herein ought to have reasonably foreseen and dealt with the issue of being framed by three of his own blood relatives at that point.
26. Counsel submitted that the Court of Appeal in R vs Ali Babitu Konono [2017] eKLR emphasizes that the unfettered power of that appellate court to receive additional evidence should be used sparingly where it is shown that the evidence is fresh. Counsel in his submissions raised the issue of whether the three victims in the current case recorded fresh statements to contradict their earlier ones, and whether the Medical Officer also filled fresh P3 Forms to contradict the one produced at the trial before the subordinate court and whether the independent witnesses including the Medical officer and the Investigating Officer were compromised as well.
27. In conclusion Counsel cited Chesoni Ag.JA in the case of Wanje vs Saikwa [1984] KLR 275 wherein he stated that Section 358 of the Criminal Procedure Code is not intended to enable a party who has discovered new evidence improve or a litigant who has been unsuccessful at the trial to patch up weak points in his case to fill omissions on appeal which he submits is what the Applicant herein seeks to do.
Analysis and Determination
28. The first matter of note and in which I fully agree with the submissions with the Counsel for the State is that under the Constitutional provisions under which the Application is expressed to be brought, there is no provision known as Article 159(2)(k) which the Applicant has sought to rely upon. This being the case, the court will therefore not make any assumptions on behalf of the Applicant that he intended to come under a different provision of the Constitution and more particularly Article 159(2)(d) of the Constitution as has been suggested by the Counsel for the State.
29. However, on the Statutory provisions under which the Application is premised, contrary to the submissions by the State, apart from the cited Article of the Constitution, the Application is also premised on Section 358 of the Criminal Procedure Code and not the Civil Procedure Code and the said Section does exist. The court will therefore proceed from the fact that the Application is premised on Section 358 of the Criminal Procedure Code.
30. The said Section 358 of the Criminal Procedure Code provides as follows on the power of a court to take additional evidence on appeal. It provides thus;
(1) In dealing with an appeal from a subordinate court, the High Court, if it thinks additional evidence is necessary, shall record its reasons, and may either take such evidence itself or direct it to be taken by a subordinate court.
(2) When the additional evidence is taken by a subordinate court, that court shall certify the evidence to the High Court, which shall thereupon proceed to dispose of the appeal.
(3) Unless the High Court otherwise directs, the accused or his advocate shall be present when the additional evidence is taken.
(4) Evidence taken in pursuance of this section shall be taken as if it were evidence taken at a trial before a subordinate court.
31. The above being the law which the court notes as has been submitted by Counsel for the Applicant does indeed vest the High Court with the discretion to take additional evidence either by itself or by a subordinate court if the court so directs, the second matter of note is that from my reading of the decision of Nyakundi J in the case of Abdulswamad Swaleh Mohammed & 2 Others vs Republic [2021] KEHC 8948 (KLR) cited by the Applicant in its entirety it is necessary to state that contrary to the submission by Counsel for the Applicant, and as was pointed out by the Counsel for the State, not only is the said decision unrelated to the issue at hand for reasons that it is not about the recantation of evidence by parties that have already testified, but the Hon Nyakundi J in the said decision did also not admit the new evidence that was sought to be considered by the court in the exercise of its appellate jurisdiction.
32. That said, in the case of Republic v Parks (1961) All ER 639 as cited in Eigood v Republic 1968 EA CA 274, the court set out the principles to be considered by the court when confronted with a situation where additional evidence is sought to be introduced by a party at the appellate stage before taking the said as follows;
“Those principles can be summarized in this way: First, the evidence that it is sought to call must be evidence which was not available at the trial. Secondly, and this goes without saying, it must be evidence relevant to the issues. Thirdly, it must be evidence which is credible evidence in the sense that it is well capable of belief; it is not to decide whether it is to be believed or not, but it must be evidence which is capable of belief. Fourthly, the court will after be considering that evidence go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial.”
33. But even as the court in exercising its discretion as guided by the principles set out in the decision above, to take or not to take additional evidence, it must exercise the necessary caution to guard against the conscious and deliberate bastardization of the criminal justice system and processes by parties who even after being taken through a hearing, found guilty, convicted and sentenced in a legal process wherein all the basic tenant of a fair trial as provided under Articles 49 and 50(2) of the Constitution have been scrupulously adhered to are still intent on taking the courts round and round in circles by filing applications which upon careful scrutiny can only be surmised to be a deliberate and intentional abuse of the court process by paying heed to the wise counsel of Chesoni Ag JA (as he then was)as was expressed in case of Wanje v Saikwa [1984] KLR 275 cited by the Counsel for the State as follows;
(1) “This Rule is not intended to enable a party who has discovered fresh evidence to import it nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case and fill up omissions in the Court of Appeal. The Rule does not authorize the admission of additional evidence for the purpose of removing lacunae and filling in gaps in evidence. The appellate court must find the evidence needful. Additional evidence should not be admitted to enable a plaintiff to make out a fresh case in appeal [Emphasis mine]. There would be no end to litigation if the Rule were used for the purpose of allowing parties to make out a fresh case or to improve their case by calling further evidence. It follows that the power given by the Rule should be exercised very sparingly and great caution should be exercised in admitting fresh evidence.”
34. In light of all the above, the issue for the determination of the court is simple, and it is whether this Application falls within the ambits of Section 358 of the Criminal Procedure Act as has been submitted, to warrant the exercise of the Court’s discretion in favour of the Applicant. In considering this issue, the court notes that whereas the discretion is indeed available to the court, it can only be exercised when the court is dealing with an appeal from the subordinate court. The question the court needs to answer therefore is whether this Application now before it can be construed to be an appeal from the subordinate court. The simple answer is that it is not.
35. The appeal from the subordinate court by this Applicant was already filed, heard and determined by the Hon Muhochi J in Eldoret HCRA No 58 of 2019. The issue of the newly recanted evidence by witnesses who had already testified before the Trial Court as alleged, if all, ought to have been raised in Eldoret HCRA No 58 of 2019 for consideration and determination by the Hon Judge sitting on the said appeal.
36. Further to the above, even as Counsel for the Applicant has invoked the provisions of Section 358 of the Criminal Procedure Code, it is especially significant and worthy of note, that there is no provision under the said section that states that if the purported new evidence was not available to an Appellant at the time of the hearing of the appeal, and that he subsequently chances upon it after the said appeal has been heard and concluded, then he can move the same appellate court anew to consider the evidence as the Applicant herein has sought to do.
37. All the above considered, the upshot is that for reasons that the appeal filed by this Applicant was already heard and determined by a court of concurrent jurisdiction, this court is functus officio the Application herein filed. In this regard therefore, I will not belabour the merits and/or the demerits of the issues raised in the said Application. This being the case then, it is my very well considered opinion that the applicant’s Application is misconceived, it is bad in law and borders on an abuse of the court process. The same is therefore dismissed in its entirety.
38. Right of Appeal 14 days
Read Dated and Signed at ELDORET on 30th October 2025
'
2. The Appellant denied all the charges and was subsequently tried, found guilty and convicted on all the three counts of incest and sentenced to serve life imprisonment on the principle count. Being dissatisfied with the conviction and sentence, the Applicant preferred an appeal against both conviction and sentence to this court vide Criminal Appeal No. E058 of 2019 and the said appeal was dismissed by the Hon. Mr. Justice Muhochi who upheld both the conviction and sentence of the Trial Court.
3. He has now moved this court by way of a Notice of Motion dated 29th April 2025, the Applicant seeks the following orders:
1) Spent.
2) That the Honourable Court be pleased to reopen the case and PW1, PW2 and PW3 be recalled to testify afresh on new recanting evidence brought about after the conclusion of the trial and conviction.
3) That costs be in the cause.
4. The Application is expressed to be brought under Article 159(2)(k)(sic) of the Constitution of Kenya 2010, Section 358 of the Criminal Procedure Code, Cap 75 and all other enabling provisions of the Law. It is premised on the grounds therein and the contents of the Supporting Affidavit sworn by the Applicant.
5. The grounds in support are that he was recently informed by his son Collins Kipkosgei Rono and sister, Carolyne Jepkemoi Kipsang that PW1, PW2 and PW3 confessed new recanting evidence to them and that the same had been reduced into affidavits. That the evidence contained in the affidavits is to the effect that PW1, PW2 and PW3’s, Step-mother, Lilian and their Class teacher told them to state that he had defiled them on a promise of milk and bread.
6. The Applicant contends that the additional evidence is very critical and is bound to change the entire position of the case and it is therefore necessary to bring this new evidence on record for the Court to consider. That the recanting evidence is critical especially in such a case of three-incest(sic)
7. That the Applicant has the right to have this evidence brought on record and knowledge of the court which court has the power to accept or reject the evidence under the law. That the prosecution has nothing to lose but everything to gain legally since it is the prosecution witness bringing the new evidence and that it is in the interest of justice that the application be allowed.
8. The Applicant deposed in the Affidavit in support of his Application that on 1st April 2019, the trial Court found him guilty of all principal counts of incest and thereafter sentenced him to serve a life sentence in all three counts. That he appealed the decision of the trial Court and this Honourable Court vide the judgment dated 5th April 2023, upheld the conviction of the trial and confirmed the same and that he is currently serving his sentence at Eldoret G. K. Prison following the charges if incest.
9. He then reiterates the averments made in the grounds in support of his Application and states that it is necessary to bring this new evidence on record for the court to consider upon reopening the suit and that upon reopening the trial suit it is necessary to recall PW1, PW2 and PW3 so that they can tell the Court “viva voce” of this new evidence. That no prejudice will be occasioned to state if this new disclosure is made public. That the Application is made in good faith to ensure the ends of justice are met and that it is in the interest of justice that the same be allowed.
10. The court directed that the Application be canvassed by way of written submissions and both parties complied and filing their relevant submissions. The Applicant filed his submissions dated 19th May 2025 while the Respondent filed submissions dated 9th June 2025
The Applicant’s Submissions
11. In regard to whether the case should be re-opened for recantation of evidence by PW1, PW2 and PW3, Counsel for the Applicant cited Section 358 of the Criminal Procedure Code and submitted that Lord Justice R. Nyakundi in the case of Abdulswamad Swaleh Mohamed & 2 others v Republic [2021| KEHC 8948 (KLR) in setting out conditions to be met to adduce new evidence stated thus: -
Bearing in mind the above minimal guidelines the Court in Ladd v Marshall {1954) 3 ALLER 745 addressed the instances when a party would be allowed to adduce additional and new evidence. In this case the Court held that: “the Rule is applicable in a way to temper procedure with the interests of justice. That in order to justify the reception of fresh evidence or a new trial. three conditions must be fulfilled: First it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. Second, the evidence must be such that if given, it would probably have an important influence on the result of the case although it need not be decisive. Third, the evidence must be sincere as is presumably to be believed or in other words it must be apparently credible although it need not be incontrovertible."
12. Counsel further submitted that in the facts deposed in the Supporting Affidavit of the applicant sworn on 29th April 2025 were not controverted by the respondent and that thereto annexed is an affidavit by Collins Kipkosgei Rono wherein he avers that the three victims being PW1, PW2 and PW3 were told by their step mother and class teacher to admit that they had been defiled by the applicant on a promise of bread and milk. Additionally, Counsel submitted that in the affidavit by Caroline Jepkemoi Kipsang, she avers at paragraph 6 that the class teacher misleads the victims to agree to what they did not understand.
13. On whether this evidence was available and could have been easily procured and within the knowledge of the Applicant at the time of trial or whether the applicant could have got the same had he done his due diligence, Counsel submitted that during and after trial, the victims were never in the custody of the applicant and so therefore the evidence was never available to the Applicant. Counsel maintained that the same only came to his knowledge upon being given the affidavits sworn on 23rd April 2025.
14. Counsel reiterated that the evidence in issue was not in the appellant''s possession at the time of the trial before the subordinate court or even at the time that he instituted the appeal before this court and maintained that, had the evidence sought to be introduced been adopted by the trial Court, the court could have reached a different verdict. Counsel urged that the evidence sought to be introduced is crucial and will help the court make an informed judgement.
15. Counsel thus urged the Court to recall the witnesses to recant their evidence in line with the protection of trial rights as provided under Article 50 of the Constitution. Counsel reiterated that there shall be no prejudice occasioned to the respondent and the application before this honourable court has been brought in good faith. In the end, Counsel submitted that the evidence sought to be produced is relevant, credible and has probative value; and that, it will also have a decisive effect upon the judgement.
The Respondent’s Submissions
16. The learned State Counsel, S.G. Thuo, opposed the application and submitted that the Applicants Notice of Motion dated 29th April 2025 is not only stale, bad in law, an abuse of the court processes, but also dead on arrival. That the Application as brought under Articles 159(2)(k) of the Constitution and Section 358 of the Civil Procedure Code Cap 75(sic) is brought under provisions which are both non-existent Sections of the laws known in Kenya.
17. Counsel submitted that there is an attempt to rely on a general proviso of...."and all other enabling provisions of the law" to try and sanitize the fatality in the legal requirements into the ambit of Article 159 (2)(d) of the Constitution which provides that justice shall be administered without undue regard to procedural technicalities. Counsel however urged that this being a Superior Court that sets legal precedents based on what is presented before it, acting otherwise would be a dangerous judicial precedence.
18. Counsel further submitted that the said application is a mischievous way of appealing against the decision of Mr. Justice Mohochi delivered on 5th April 2023 in Eldoret HCCRA No. E058 of 2019. That in the said Judgement Muhochi J at pages 16-38 referred to the “purported affidavit together with annexures”. That even as the Applicant is seeking to introduce new and compellable evidence sworn by Collins Kipkosgei Rono by way of an Affidavit dated 23rd April 2025, Counsel submitted that it is curious that no lower court proceedings were availed to assist the court appreciate the gist of the current Application.
19. Counsel urged that the thrust of this Application which he urged the court to treat with caution is just one of the recent flurry of applications where Applicants seek to overturn incestuous convictions(sic) at the High Court on the excuse of discovery of new and compelling evidence of the now grownup victims seeing the light
20. He submitted that leave to appeal was never sought and that the same Court that was presided over by Muhochi J who heard the Appeal against conviction and sentence is cognate to the current Honourable Court and therefore the dicta in Owners of Motor Vessel "Lilian S" vs Caltex Oil (Kenya) Ltd (1989) KLR on the issue of jurisdiction comes into play. That in line with the dicta in the cited case, Counsel urged that an appeal against an order from the High Court lies in the Court of Appeal and not before another High Court.
21. Counsel argued that even assuming for a moment that the Applicant, who obviously did not, invoked Section 358 of the Criminal Procedure Code that sparingly allows the High Court to admit additional evidence in an appeal from a Subordinate Court, can this Application, in light of the decision of this court in Eldoret HCRA No 58 of 2019 be said to fall within the strict definition of Section 358 of the Criminal Procedure Code as an appeal from a Subordinate Court. It is Counsel’s submission that this is an appeal from a cognate Court not a Subordinate Court.
22. Counsel further submitted that even with the slightest stretch of imagination, had this application been brought under Article 50(6) of the Constitution, still, it would not have met the threshold of introduction of “new and compelling evidence not readily available at the trial. In this regard, Counsel pointed out that the Applicants submissions largely rely on the dicta of Mr. Justice Nyakundi in the cited case of Abdulswamad Swaleh Mohammed & 2 Others vs Republic [2021] KEHC 8948 (KLR).
23. Counsel submitted that the cited case is totally irrelevant to the present matter reason being that in the cited case, Justice Nyakundi allowed the Applicant to adduce new evidence of a private investigator that was never disclosed to the Applicant at the time of trial. He submitted that the Black Laws Dictionary 8th Edition defines "new" as "recently discovered.... recently came into being..." and "compelling" as "...powerful, evoking attention or admiration...". In this regard then, Counsel urged that it follows therefore the evidence sought to be branded as new and compelling by the Applicant as is sought to be the case herein must have been recently discovered, or has just come into being, and is evidence that will evoke attention and arouse a great deal of interest."
24. Counsel submitted that the question is whether the mere allegation of minors being promised milk and bread to fix the Victims biological father by PW1(an 8-year-old then), PW2 (a 10-year-old then) and PW-3 (a 5-year-old then, who was in fact so traumatized that she could not give oral evidence) can be said to amount to new and compelling evidence sufficient to warrant the recall PW1. He submits that it is not.
25. Counsel further submitted that voire dire was carried out before the minors gave their testimonies either in person or through intermediaries and they were thereafter extensively cross examined. The essence of cross examination then was so as to discredit their evidence and the Applicant herein ought to have reasonably foreseen and dealt with the issue of being framed by three of his own blood relatives at that point.
26. Counsel submitted that the Court of Appeal in R vs Ali Babitu Konono [2017] eKLR emphasizes that the unfettered power of that appellate court to receive additional evidence should be used sparingly where it is shown that the evidence is fresh. Counsel in his submissions raised the issue of whether the three victims in the current case recorded fresh statements to contradict their earlier ones, and whether the Medical Officer also filled fresh P3 Forms to contradict the one produced at the trial before the subordinate court and whether the independent witnesses including the Medical officer and the Investigating Officer were compromised as well.
27. In conclusion Counsel cited Chesoni Ag.JA in the case of Wanje vs Saikwa [1984] KLR 275 wherein he stated that Section 358 of the Criminal Procedure Code is not intended to enable a party who has discovered new evidence improve or a litigant who has been unsuccessful at the trial to patch up weak points in his case to fill omissions on appeal which he submits is what the Applicant herein seeks to do.
Analysis and Determination
28. The first matter of note and in which I fully agree with the submissions with the Counsel for the State is that under the Constitutional provisions under which the Application is expressed to be brought, there is no provision known as Article 159(2)(k) which the Applicant has sought to rely upon. This being the case, the court will therefore not make any assumptions on behalf of the Applicant that he intended to come under a different provision of the Constitution and more particularly Article 159(2)(d) of the Constitution as has been suggested by the Counsel for the State.
29. However, on the Statutory provisions under which the Application is premised, contrary to the submissions by the State, apart from the cited Article of the Constitution, the Application is also premised on Section 358 of the Criminal Procedure Code and not the Civil Procedure Code and the said Section does exist. The court will therefore proceed from the fact that the Application is premised on Section 358 of the Criminal Procedure Code.
30. The said Section 358 of the Criminal Procedure Code provides as follows on the power of a court to take additional evidence on appeal. It provides thus;
(1) In dealing with an appeal from a subordinate court, the High Court, if it thinks additional evidence is necessary, shall record its reasons, and may either take such evidence itself or direct it to be taken by a subordinate court.
(2) When the additional evidence is taken by a subordinate court, that court shall certify the evidence to the High Court, which shall thereupon proceed to dispose of the appeal.
(3) Unless the High Court otherwise directs, the accused or his advocate shall be present when the additional evidence is taken.
(4) Evidence taken in pursuance of this section shall be taken as if it were evidence taken at a trial before a subordinate court.
31. The above being the law which the court notes as has been submitted by Counsel for the Applicant does indeed vest the High Court with the discretion to take additional evidence either by itself or by a subordinate court if the court so directs, the second matter of note is that from my reading of the decision of Nyakundi J in the case of Abdulswamad Swaleh Mohammed & 2 Others vs Republic [2021] KEHC 8948 (KLR) cited by the Applicant in its entirety it is necessary to state that contrary to the submission by Counsel for the Applicant, and as was pointed out by the Counsel for the State, not only is the said decision unrelated to the issue at hand for reasons that it is not about the recantation of evidence by parties that have already testified, but the Hon Nyakundi J in the said decision did also not admit the new evidence that was sought to be considered by the court in the exercise of its appellate jurisdiction.
32. That said, in the case of Republic v Parks (1961) All ER 639 as cited in Eigood v Republic 1968 EA CA 274, the court set out the principles to be considered by the court when confronted with a situation where additional evidence is sought to be introduced by a party at the appellate stage before taking the said as follows;
“Those principles can be summarized in this way: First, the evidence that it is sought to call must be evidence which was not available at the trial. Secondly, and this goes without saying, it must be evidence relevant to the issues. Thirdly, it must be evidence which is credible evidence in the sense that it is well capable of belief; it is not to decide whether it is to be believed or not, but it must be evidence which is capable of belief. Fourthly, the court will after be considering that evidence go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial.”
33. But even as the court in exercising its discretion as guided by the principles set out in the decision above, to take or not to take additional evidence, it must exercise the necessary caution to guard against the conscious and deliberate bastardization of the criminal justice system and processes by parties who even after being taken through a hearing, found guilty, convicted and sentenced in a legal process wherein all the basic tenant of a fair trial as provided under Articles 49 and 50(2) of the Constitution have been scrupulously adhered to are still intent on taking the courts round and round in circles by filing applications which upon careful scrutiny can only be surmised to be a deliberate and intentional abuse of the court process by paying heed to the wise counsel of Chesoni Ag JA (as he then was)as was expressed in case of Wanje v Saikwa [1984] KLR 275 cited by the Counsel for the State as follows;
(1) “This Rule is not intended to enable a party who has discovered fresh evidence to import it nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case and fill up omissions in the Court of Appeal. The Rule does not authorize the admission of additional evidence for the purpose of removing lacunae and filling in gaps in evidence. The appellate court must find the evidence needful. Additional evidence should not be admitted to enable a plaintiff to make out a fresh case in appeal [Emphasis mine]. There would be no end to litigation if the Rule were used for the purpose of allowing parties to make out a fresh case or to improve their case by calling further evidence. It follows that the power given by the Rule should be exercised very sparingly and great caution should be exercised in admitting fresh evidence.”
34. In light of all the above, the issue for the determination of the court is simple, and it is whether this Application falls within the ambits of Section 358 of the Criminal Procedure Act as has been submitted, to warrant the exercise of the Court’s discretion in favour of the Applicant. In considering this issue, the court notes that whereas the discretion is indeed available to the court, it can only be exercised when the court is dealing with an appeal from the subordinate court. The question the court needs to answer therefore is whether this Application now before it can be construed to be an appeal from the subordinate court. The simple answer is that it is not.
35. The appeal from the subordinate court by this Applicant was already filed, heard and determined by the Hon Muhochi J in Eldoret HCRA No 58 of 2019. The issue of the newly recanted evidence by witnesses who had already testified before the Trial Court as alleged, if all, ought to have been raised in Eldoret HCRA No 58 of 2019 for consideration and determination by the Hon Judge sitting on the said appeal.
36. Further to the above, even as Counsel for the Applicant has invoked the provisions of Section 358 of the Criminal Procedure Code, it is especially significant and worthy of note, that there is no provision under the said section that states that if the purported new evidence was not available to an Appellant at the time of the hearing of the appeal, and that he subsequently chances upon it after the said appeal has been heard and concluded, then he can move the same appellate court anew to consider the evidence as the Applicant herein has sought to do.
37. All the above considered, the upshot is that for reasons that the appeal filed by this Applicant was already heard and determined by a court of concurrent jurisdiction, this court is functus officio the Application herein filed. In this regard therefore, I will not belabour the merits and/or the demerits of the issues raised in the said Application. This being the case then, it is my very well considered opinion that the applicant’s Application is misconceived, it is bad in law and borders on an abuse of the court process. The same is therefore dismissed in its entirety.
38. Right of Appeal 14 days
Read Dated and Signed at ELDORET on 30th October 2025
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